Typhoon season in central Vietnam, a pandemic wave that shuts the site, an administrative lockdown order — these events raise the same legal questions: is it force majeure, how much time does it buy, and who carries the resulting costs? Articles 156 and 351 of the Civil Code set the general frame, but in a construction contract the concrete outcome depends mostly on the force majeure clause the parties wrote and the contractor’s evidence file.
When storms and pandemics count as force majeure
Under Article 156 of the Civil Code, a force majeure event is one that occurs objectively, could not have been foreseen, and could not have been overcome despite all necessary and possible measures. Applied to construction, storms and floods exceeding the area’s normal design defences, flash floods and unexpected landslides usually meet all three elements. By contrast, rain and storms in typhoon season in a region that has them every year, at ordinary intensity, are risks a professional contractor must foresee in its method planning and price; such events are usually not accepted as force majeure, and this dividing line is the most argued point in Vietnam’s rainy-season extension claims.
An officially declared epidemic and its accompanying administrative measures — construction suspension, movement restrictions, workforce isolation — are more clearly objective and insurmountable, and are usually accepted as force majeure or as a change-of-circumstances event depending on contract structure. Article 351 of the Civil Code lets a breaching party be exempt from liability where the breach results from force majeure, unless otherwise agreed; in construction the consequence materialises as a time extension for the affected period and relief from delay penalties for it.
Proving force majeure and allocating the extra costs
To earn an extension the contractor must pass three layers of proof: notice of the event to the employer within the contract period as soon as it occurs; objective evidence of the event such as hydro-meteorological authority data, an epidemic declaration or work-suspension decision by the competent authority, or force majeure certification by the competent authority or the Chamber of Commerce and Industry in international commercial relations; and proof of actual impact on the critical path through updated programmes and site diaries logging stoppage days and idle resources. Without the third layer, a real event does not by itself convert into a matching number of extension days.
On costs, the default practice position is that force majeure buys time, not money: the contractor receives an extension and penalty relief, but site-protection costs — pumping, covering, making safe — and storm damage repair fall on whichever party bears the corresponding property risk under the contract and the works insurance scope; this is exactly why construction insurance is near-mandatory for physical damage from storms and floods. Only a contract clause sharing the cost of special events, or an event allocated to the employer, changes that outcome. Employer and contractor should review this clause together with buying the insurance, because the two documents decide the same pot of money.
Extension yes, cost compensation no — and the long-event exit
The default answer is that for a neutral force majeure event, hurting neither party’s fault, the contractor gets time but not prolongation cost compensation. That differs fundamentally from employer-caused delay, where prolongation costs are compensable. The practical boundary lies in classifying the event: an administrative suspension for general state-management reasons counts as force majeure; a suspension because the employer’s own project had not completed its legal procedures is an employer-responsibility event even though both arrive as state documents. Contractors should analyse an event’s origin, not just its paper form, when building a claim.
Where a force majeure event lasts beyond the contract’s threshold — commonly several continuous months — both parties usually gain a right to terminate under a dedicated mechanism, with payment for work done and reasonable demobilisation costs but no loss-of-profit compensation. This escape clause is essential for projects in high natural-disaster-risk areas and should be written with a specific time threshold and notice procedure, rather than leaving both sides to invoke general rules after the event has already happened.
Frequently Asked Questions
Do storms and floods count as force majeure for a time extension?
Yes, if the storm or flood exceeds what is normally foreseeable for the area and the contractor had applied necessary preventive measures, meeting Article 156 of the Civil Code. Ordinary rainy-season weather in a region with annual storms is a risk the contractor must allow for in its method and price, and is usually not accepted as force majeure. The deciding factor is event intensity against the area’s design defences and historical data.
What documents must the contractor produce to prove force majeure?
Three layers: timely notice to the employer within the contract period; objective event evidence such as hydro-meteorological data, an epidemic declaration or suspension decision, or certification by the competent authority or the Chamber of Commerce and Industry; and proof of actual critical-path impact through updated programmes and site diaries. Without impact proof, even a real event does not convert into extension days.
Who bears extra costs caused by force majeure, such as site protection?
By default, force majeure grants time and penalty relief, not cost compensation. Site-protection costs and physical storm damage are handled under the contract’s risk allocation and the works insurance scope; insurance is the primary payer for storm and flood physical damage. Only a special cost-sharing clause in the contract changes that outcome.
We received a time extension — can we also recover costs?
Usually not for a neutral force majeure event: the contractor receives an extension and relief from delay penalties but bears its own prolongation costs, unlike employer-caused delay where costs are compensable. If the event outlasts the contract threshold, both parties may terminate under the prolonged force majeure mechanism with payment for work performed.
Practical recommendations
The force majeure clause should be written for the project’s own location: an event definition tied to the area’s historical storm and flood data, an intensity threshold for what counts as unforeseeable, notice and proof procedures, allocation of site-protection costs, and a termination threshold for prolonged events. A generic template clause will answer none of the four questions above when an incident actually happens in the middle of typhoon season.
This article has been quality-reviewed by the FLAW AI Legal Council